PROXY AND VOTING AGREEMENT
Exhibit 4
Execution Copy
This Proxy and Voting Agreement (this “Agreement”), dated September 14, 2009 (the
“Effective Date”), is entered into by and among XXXXX. X. XXXXXXXXXX, an individual,
XXXXXXXXXXX X. XXXXXXXXXX, an individual, and the undersigned stockholders of Grand Canyon
Education, Inc., a Delaware corporation (the “Company”), listed on the signature pages
hereto (each, a “Stockholder” and, collectively, the “Stockholders”).
RECITALS
A. Xxxxx X. Xxxxxxxxxx and Xxxxxxxxxxx X. Xxxxxxxxxx (collectively, the “Xxxxxxxxxx Voting
Group”) are parties to a proxy and voting agreement, dated September 17, 2008, by and among the
Xxxxxxxxxx Voting Group and the stockholders named therein, pursuant to which such stockholders
have granted to the Xxxxxxxxxx Voting Group voting power over their shares of common stock, par
value $0.01 per share, of the Company (“Common Stock”) as set forth therein.
B. Each Stockholder is a holder of shares of Common Stock of the Company.
C. Each Stockholder desires to enter into this Agreement and to grant to the Xxxxxxxxxx Voting
Group voting power over shares of their Common Stock that are subject to this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
to this Agreement hereby agree as follows:
1. Irrevocable Proxy.
a. Effective upon the Effective Date, and continuing until November 19, 2013, each Stockholder
hereby grants to Xxxxx X. Xxxxxxxxxx and Xxxxxxxxxxx X. Xxxxxxxxxx, and each of them, an
irrevocable proxy, and hereby constitutes and appoints Xxxxx X. Xxxxxxxxxx and Xxxxxxxxxxx X.
Xxxxxxxxxx, and each of them, as such Stockholder’s true and lawful proxy and attorney-in-fact,
each with full power of substitution, to exercise all voting authority and authority to act by
written consent for the Shares (as defined below) of such Stockholder on all matters on which such
Shares may be voted and all matters requiring the affirmative vote or consent of the Stockholders,
which proxy is IRREVOCABLE AND COUPLED WITH AN INTEREST.
b. For purposes of this Section 1, the term “Shares” shall mean the shares of
Common Stock beneficially owned by such Stockholder as of the Effective Date and set forth opposite
such Stockholder’s name on Exhibit A hereto and any other shares of stock issued or
issuable with respect thereto (whether by way of stock dividend or stock split or in exchange for
or upon conversion of such shares or otherwise in connection with a combination of shares,
recapitalization, merger, consolidation, or other corporate reorganization).
c. Anything in this Section 1 to the contrary notwithstanding, in no event may Xxxxx X.
Xxxxxxxxxx and Xxxxxxxxxxx X. Xxxxxxxxxx exercise any such voting authority or authority to act by
written consent with respect to any such Share or Shares if, by exercising such authority with
respect to any such Share or Shares, the number of shares of Common Stock over which the Xxxxxxxxxx
Voting Group exercises such authority, pursuant to this Agreement or any other agreement, would
equal or exceed 50% or more of the outstanding shares of Common Stock of the Company at such time.
Accordingly, at any given time, the number of Shares over which Xxxxx X. Xxxxxxxxxx and Xxxxxxxxxxx
X. Xxxxxxxxxx may exercise any such voting authority or authority to act by written consent
pursuant to this Agreement shall be equal to the total number of Shares, less such number of Shares
as shall be necessary to ensure that the total number of shares of Common Stock over which the
Xxxxxxxxxx Voting Group exercises such authority, pursuant to this Agreement or any other
agreement, is less than 50%.
2. Voting Agreement. If, for any reason, the proxy provided for in Section 1
is determined to be invalid or unenforceable in any respect, then each Stockholder shall, and shall
cause each of its affiliates to, attend each meeting of the stockholders of the Company for the
purposes of satisfying the quorum requirements for any such meeting and shall vote its Shares for
or against any matter on which the Shares may be voted, and shall vote for or consent to (or
refrain from voting for or consenting to) any matter requiring the affirmative vote or consent of
the Stockholders, in each case as directed by Xxxxx X. Xxxxxxxxxx and Xxxxxxxxxxx X. Xxxxxxxxxx.
3. Other Stockholder Rights. Except as otherwise provided herein, all other rights
associated with a Stockholder’s ownership of the Shares, including, but not limited to, all rights
to transfer, sell or otherwise dispose of such Shares shall not be modified by or subject to this
Agreement.
4. Further Assurances. Each Stockholder agrees to execute and deliver to Xxxxx X.
Xxxxxxxxxx and Xxxxxxxxxxx X. Xxxxxxxxxx, from time to time, such other documents and instruments
as may be reasonably requested by either of them to the extent necessary to permit Xxxxx X.
Xxxxxxxxxx and Xxxxxxxxxxx X. Xxxxxxxxxx to vote or act on behalf of such Stockholder. In
furtherance of the foregoing, each Stockholder agrees (a) to notify Xxxxx X. Xxxxxxxxxx and/or
Xxxxxxxxxxx X. Xxxxxxxxxx in writing within two (2) business days following any sale or other
transfer of Shares if, following such sale or transfer, such Shares would no longer be subject to
this Agreement, and (b) to confirm in writing to Xxxxx X. Xxxxxxxxxx and/or Xxxxxxxxxxx X.
Xxxxxxxxxx, within two (2) business days of receiving a request
therefor, the number of shares of
Common Stock that are beneficially owned by such Stockholder as of the date of such request.
5. General.
a. Governing Law; Venue. This Agreement shall be governed by and construed under the
laws of the State of Delaware (without regard to the conflicts of laws rules of such State). The
parties agree and consent to the jurisdiction of the state and federal courts located in Phoenix,
Arizona and acknowledge that such courts shall constitute proper and
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convenient forums for the resolution of any actions between the parties hereto with respect to
the subject matter hereof, and agree that such courts shall be the sole and exclusive forums for
the resolution of any actions between the parties hereto with respect to the subject matter hereof.
b. Successors and Assigns. The provisions hereof shall inure to the benefit of, and
be binding upon, the successors, assigns, heirs, executors, and administrators of the parties
hereto (collectively, the “Successors”); provided, however, that this
Agreement shall not be binding upon any Successor who purchases Shares from a Stockholder for value
in a transaction registered under the Securities Act of 1933, as amended, or effected pursuant to
an exemption therefrom.
c. Severability. If any provision of this Agreement is deemed or held to be illegal,
invalid or unenforceable, this Agreement shall be considered divisible and inoperative as to such
provision to the extent it is deemed to be illegal, invalid or unenforceable, and in all other
respects this Agreement shall remain in full force and effect; provided, however, that if any
provision of this Agreement is deemed or held to be illegal, invalid or unenforceable there shall
be added hereto automatically a provision as similar as possible to such illegal, invalid or
unenforceable provision and be legal, valid and enforceable. Further, should any provision
contained in this Agreement ever be reformed or rewritten by any judicial body of competent
jurisdiction, such provision as so reformed or rewritten shall be binding upon all parties hereto.
d. Amendment and Waiver. Any amendment, change or modification of this Agreement
shall be void unless in writing and signed by all parties hereto.
e. Remedies. The Stockholders agree and acknowledge that damages may not be an
adequate remedy for any breach of the provisions of this Agreement, and that in the event of a
breach or threatened breach by any Stockholder, each of Xxxxx X. Xxxxxxxxxx and Xxxxxxxxxxx X.
Xxxxxxxxxx shall be entitled to apply to any court of competent jurisdiction for a temporary and/or
permanent injunction restraining the breaching party from such breach or threatened breach.
f. Notices. All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given when personally delivered, or three business days after
deposit in the United States mail, first-class, postage prepaid and one business day after deposit
with a reputable overnight courier service, or by facsimile (with proof of transmission), upon
transmission, to the address or facsimile number on file with the Company.
g. Headings. The descriptive section headings are for convenience of reference only
and shall not control or affect the meaning or construction of any provision of this Agreement.
h. Complete Agreement. This Agreement constitutes the entire agreement between the
parties hereto and supersedes all prior agreements, representations, warranties, statements,
promises, information, arrangements and understandings, whether oral or written, express or
implied, with respect to the subject matter hereof.
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i. Counterparts; Facsimile Copies. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together shall constitute one
instrument. Signatures sent to the other parties by facsimile shall be binding as evidence of
acceptance of the terms hereof by such signatory party.
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IN WITNESS WHEREOF, the parties hereto have executed this Proxy and Voting Agreement as of the
date set forth in the first paragraph hereof.
| XXXXXXXXXX VOTING GROUP: |
||||
| By: | /s/ Xxxxx X. Xxxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxxx | |||
| By: | /s/ Xxxxxxxxxxx X. Xxxxxxxxxx | |||
| Name: | Xxxxxxxxxxx X. Xxxxxxxxxx | |||
| STOCKHOLDERS: ENDEAVOUR CAPITAL FUND IV, LP |
||||
| By: | Endeavour Capital IV, LLC | |||
| Its: | General Partner |
|||
| By: | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | Managing Member | |||
| ENDEAVOUR ASSOCIATES FUND IV, LP |
||||
| By: | Endeavour Capital IV, LLC | |||
| Its: | General Partner |
|||
| By: | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | Managing Member | |||
| ENDEAVOUR CAPITAL PARALLEL FUND IV, LP |
||||
| By: | Endeavour Capital IV, LLC | |||
| Its: | General Partner |
|||
| By: | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | Managing Member | |||
Exhibit A
| Number of Shares | ||||
| Name of Stockholder | of Common Stock Owned | |||
Endeavour Capital Fund IV, LP |
5,395,750 | |||
Endeavour Associates Fund IV, LP |
330,470 | |||
Endeavour Capital Parallel Fund IV, LP |
610,918 | |||
Total |
6,337,138 | |||
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